When a worker is injured at a company recreational event, the predominant issue is whether the claimant’s accident occurred “out of and in the course of employment”. The facts and circumstances of the case determine whether the injury qualifies under workers’ compensation.

Workers compensation law section 10(1) sets forth three conditions under which workers compensation benefits may be awarded for injuries incurred during voluntary participation in an off-duty athletic activity that is not part of the employees work related activities. Specifically, an award is foreclosed under section 10 unless “the employer (1) required the employee to participate in the activity, (2) paid the worker to do so, or (3) sponsored the activity” (Matter of Bogert v. E.B. Design Air, Inc. 38 AD3d 1125 [2007], quoting Matter of Dorosz v. Green & Seifter, 92 NY2d 672 [1999]).

To illustrate this issue, here are two fact patterns with different outcomes: one claimant was awarded benefits while the other was not.

119 NYWCLR 54 Fedex Express G2255753

The facts:

The claimant suffered injury to his left leg while participating in a company-sponsored “family day” basketball game. He testified that he played in this company basketball game every year, and that the self-insured employer (SIE) advertised the match, incentivized and encouraged participation in the basketball tournament with posters, in-office trophy display, and prizes. The SIE also provided the t-shirt that the employee wore as a uniform during the match, which had the company’s name and logo on it. The SIE provided tickets free of charge for employees and their families, as well as free food and drinks.

The SIE contended that the claimant’s accident did not arise out of or in the course of employment because he was injured in a social athletic activity and was not paid for his participation.

The result:

As the SIE sponsored the company event, advertised the event and incentivized participation in the basketball tournament, the Workers’ Compensation Board ruled that the claimant’s accident did arise out of and in the course of employment.

Now, let’s look at another similar case with a different outcome.

General Electric, 114 NYWELR 142 (N.Y.W.C.B., Panel 2014)

The facts:

The claimant suffered injuries to his ACL and meniscus while playing softball with his coworkers. The team was playing on company property, with company-owned equipment that was provided by the employer’s health clinic and stored on the premises.

The result:

The Workers’ Compensation Board Panel denied benefits to the claimant because his injuries were not sustained out of and in the course of employment. The Board found that the employer did not require the employee(s) to participate in the softball game, did not sponsor the activity and did not benefit in any obvious way from the activity.

As you can see from the different outcomes of these two cases, the facts of the case matter a great deal in determining if an injury was sustained out of and in the course of employment.

If you were injured at a company event and are unsure whether or not you qualify for workers' compensation benefits, contact Gilbert, Blaszcyk & Milburn for your free consultation!

Several studies have demonstrated that healthcare workers in hospitals, nursing homes, assisted living communities and other settings are at particularly high risk for workplace violence. Workplace violence can be perpetrated by coworkers and even strangers, but in the case of healthcare workers, “80 percent of serious violent incidents…were caused by interactions with patients.”[1]

According to an OSHA report, “from 2002 to 2013, incidents of serious workplace violence (those requiring days off for the injured worker to recuperate) were four times more common in healthcare than in private industry on average.”[2]Similarly, the American Nurses Association reported that, “21 percent of registered nurses and nursing students reported being physically assaulted—and over 50 percent verbally abused—in a 12-month period”[3]According to the Bureau of Labor Statistics, psychiatric aides are at highest risk for workplace violence within this high risk group: “(f)or psychiatric aides, the rate is 69 times higher than the national rate of violence in the workplace, and for psychiatric technicians it is 38 times higher.”[4]

Workplace violence remains underreported, partially due “to a health care culture that is resistant to the belief that providers are at risk for patient-initiated violence and to a complacency in thinking that violence is “part of the job.”[5]While healthcare workers are often reluctant to report incidents of workplace violence since they feel responsible for their patients, it is important that they report the incidents for several reasons. First, reporting ensures that employers have enough information about incidents to enact safety measures. Second, if a healthcare worker needs treatment, whether physical or psychological, either immediately or down the line, it is important that the employer has been notified of the violent incident. This way the healthcare worker can receive compensation for any lost time and the necessary medical treatment they need.

If you are a healthcare worker and have a work-related injury or illness, contact the law office of Gilbert, Blaszcyk & Milburn for your free consultation.

In our digital age, social media permeates so much of our lives. We often check our social media platforms several times a day, and perhaps add a picture or comment without giving it much thought.

If you have an ongoing workers’ compensation claim, these habits can be damaging. Your social media presence can seriously impact the success of your workers’ compensation claim. Insurance companies routinely check public social media accounts for evidence that the claimant’s injuries are not as serious as they claim.

What is the solution?

It is important to take precautionary steps and be smart with your social media presence. There are several steps you can take:

First and foremost, it is extremely important that you are honest regarding the extent of your injuries and activities you cannot perform. Similarly, you should always follow your Doctor’s orders.

Second, ensure that your social media profiles are private. Investigators cannot impersonate someone you may know and “friend”, “add” or “request” you on your social media platforms. So, if your accounts are private, investigators will not be able to access any public information from your social media.

Third, reduce your social media presence while you have an ongoing claim. This reduces the chance that you will say or do something that might be misconstrued and negatively impact your case.

Fourth, inform your family and friends that you have an ongoing claim and that you must be very careful not to jeopardize your claim. While you can control your own social media accounts, you obviously cannot control those of others. Investigators can use posts your family members or friends make on their public accounts. Even if you are very careful not to post potentially problematic materials on your own profiles, a video taken and posted—for example—by your cousin of you jumping on a trampoline could be damning.

Finally, consider your claim before you partake in any activities. Be conscious not to do anything that could be construed negatively by the insurance adjustor or a workers’ compensation Judge. Ask yourself, “how would this look to the insurance company or to a Judge?” and “Would this activity make my condition appear to be less serious or even non-existent?” If you are at all apprehensive when asking yourself these questions, err on the side of caution. You don’t want to do anything that could jeopardize your ability to receive the benefits you deserve.

This should relate to all aspects of your life while your claim is ongoing. In addition to social media surveillance, insurance companies also routinely collect video surveillance. While the insurance company is not allowed to harass you or follow you to your private residence, they are permitted to film you in public locations like the supermarket, train station or park.

We realize that this can be frustrating. You want to go for a short hike on vacation, or volunteer at a soup kitchen. But the logical question the insurance adjustor and Judge will ask is, “if he/she can do that, why can’t they work?”

For some examples on how social media surveillance has been used against claimants, see this this interesting infographic from an article titled “Facebook Has a New Friend: Disability Insurers” from Bloomberg News.[1]

Section 29(6) of the New York Workers’ Compensation Law states that workers’ compensation benefits are the “exclusive remedy” for injured workers. Employees are entitled to collect benefits for lost wages and medical treatment related to their work injury or illness. Thus, as a general rule, in New York State, an employee cannot sue his/her employer.

There are notable exceptions to this rule: 1) if the employer intentionally caused the employee’s injury; 2) if an employee fails to provide workers’ compensation insurance coverage for an employee; 3) if the employee is a uniformed worker for the NYPD, FDNY, or New York City Department of Sanitation, since those agencies are not required to maintain workers’ compensation coverage for their employees.

An employee may, however, potentially sue a negligent third-party via a personal injury lawsuit. This rule can apply in some notable cases: 1) an employee is injured in a motor vehicle accident; 2) an employee suffers injury on a construction site; 3) an employee is injured by negligence of a subcontractor; 4) an employee is injured while working on the property of another business.

In all cases, the individual facts influence the remedies available to an injured worker. During your free consultation with Gilbert, Blaszcyk & Milburn, our attorneys will review the facts of your case and provide valuable advice. We want the best for our clients, and we believe the injured worker should receive all of the benefits they are entitled to. If a personal injury lawsuit is possible in your case, we will work with you to find the right lawyer to handle this portion of your claim.

In 2018, the New York State Workers’ Compensation Board began rolling out its Virtual Hearing system. These virtual hearings allow all parties in a workers’ compensation claim—attorneys, claimants and witnesses alike—to participate remotely via their computers, tablets or phones. New York is the first state to have implemented such a system state-wide.

The system utilizes Cisco WebEx, and requires steady internet connection and a device with both camera and microphone capabilities. In 2019, the Board also released a virtual hearing mobile app. As of the time of this article, virtual hearings are available at all New York State Workers’ Compensation Board locations except Newburgh (this location will be added soon).

With some hearings lasting only several minutes, this virtual hearing option is especially helpful to eliminate claimant’s travel burden, especially if the claimant is still injured or ill at the time of the hearing.

However, while the virtual hearings may be useful in some cases such as inclement weather or travel-preventing injury, it is important to note that in-person contact between the claimant and his/her attorney is extremely important. Due to this, the attorneys of Gilbert, Blaszcyk & Milburn generally recommend that claimant’s attend all hearings possible. This ensures that the attorney can connect personally with the claimant, answer questions and explain the hearing.

We expect that the workers’ compensation system will continue to evolve and change with times and technology, bringing both advantages and disadvantages. As these changes come, our staff will continue to answer your questions and ensure you get the benefits you deserve.

When many people think of workers’ compensation, they think of construction workers and laborers. But, our attorneys at Gilbert, Blaszcyk & Milburn have been in the workers’ compensation business for many decades, and have had clients from dozens of professions.

This week, as our office is celebrating our own Administrative Professionals, we’ve compiled some of the workers’ compensation claims that office workers may have.

Administrative professionals often experience injuries that are gradual in nature. These repetitive motion injuries include carpal tunnel, back pain and eye strain. These conditions can develop over years of typing and staring at a computer screen. Many people do not realize that injuries like carpal tunnel are eligible for workers’ compensation.

Slips and falls are a common workplace injury. Wet floors, exposed computer and phone wires, cluttered offices, upturned rugs and uneven surfaces are all everyday hazards in offices. Rain, snow, ice and wind can make sidewalks and parking lots dangerous. No matter how careful we are to straighten our rugs and tuck in loose wires, an accidental fall from a leaky faucet or icy sidewalk can still cause an office worker injury.

Many administrative professionals routinely run errands like picking up supplies for their workplace. A car accident when completing a task necessary to his/her job would also fall under workers’ compensation.

Unfortunately, office workers are occasionally injured in acts of violence by coworkers or strangers. An assault by a coworker or client would fit under this category. Workplace violence can also include threats, harassment and intimidation.

Occupational diseases like asthma can also occur from poor ventilation, exposure to irritants, and/or mold. This can be especially problematic for office workers regularly exposed to manufacturing and construction materials.

If you have suffered any of these workplace injuries, contact the law office of Gilbert, Blaszcyk & Milburn for your free consultation.

Opioid addiction is a major public health concern affecting workers’ compensation nationally.

Pain management—and the use of prominent drugs such as hydrocodone, oxycodone and fentanyl—is often an important component of healing from workplace injuries. While opiates are effective at controlling pain, are relatively inexpensive and easy to access, they are also highly addictive. For injured workers facing managing their pain, long-term opioid use can also lead to dangerous respiratory depression and failure, liver damage and brain damage. For employees returning back to work after recovering from their injuries, drug misuse can contribute to workplace accidents and even death from impaired judgement and motor function.

According to the National Safety Council, “more than 70% of employers have been impacted by prescription drugs.”[i][1] According to the CDC, “46 people die every day from overdoses involving prescription opioids,” and “prescription opioids are involved in more than 35% of all opioid overdose deaths.”[2]

Facing this epidemic of opioid addiction and high costs of treatment, the New York State Workers’ Compensation Board adopted the Non-Acute Pain Medical Treatment Guidelines in 2010. These guidelines were intended to be a new mandatory standard of care for treating New York’s injured workers.

A carrier may file an RFA-2 requesting a hearing for opioid weaning issues. During the hearing, the Judge will consider whether or not the claimant’s opioid use adheres to New York’s Non-Acute Pain Medical Treatment Guidelines. The claimant can present medical reports and depositions from his/her treating physician(s) outlining their treatment and opioid usage. A Workers’ Compensation Judge will then weigh evidence and decide generally if 1) the opioid use is effective at the time of the hearing and can continue under the guidelines, or 2) the claimant should be weaned from opioids. If the Judge decides that the claimant requires enrollment in an addiction treatment program, the insurer would be required to cover the expenses of this treatment.

If you or someone you know is struggling with drug abuse, please consider calling New York State’s HOPEline at 1-877-8-HOPENY or visit the nearest emergency room.

Workers' Comp in a “Gig” Economy

Nationally, the gig economy is on the rise. A report by the Freelancer’s Union titled “Freelancing in America 2018” indicates that 56.7 million people in the United States are in the gig economy, and this number continues to grow.[1] You may be familiar with some of the most famous examples of freelancing businesses: Uber, Lyft, Juno, Doordash, PostMates, Handy, TaskRabbit, Fiverr and Care.com.

And while services like these make our lives as consumers easier, they have serious implications for workers. As stated in a National Employment Law Project report, “Tech-mediated gig work is the latest iteration of a 50-year-old pattern of workplace fissuring—the rise of ‘nonstandard’ or ‘contingent’ work that is subcontracted, franchised, temporary, on-demand, or freelance. Gig companies are simply using newfangled methods of labor mediation to extract rents from workers, and shift risks and costs onto workers, consumers, and the general public.”[2]

These now large and powerful companies continue to lobby for lower standards of worker protection. Their goal is to avoid complying with tax and labor laws by ensuring so-called “gig” workers are seen as independent contractors under workers’ compensation law.

When an employer incorrectly treats employees as independent contractors, it is called “misclassification”. Growing businesses like Uber use misclassification to hire as few employees as possible and claim the workers who carry out the bulk of their business (e.g. driving) as independent contractors. These businesses can then avoid paying for sufficient workers’ compensation insurance, as well as unemployment insurance and social security benefits, and upholding proper minimum wage and overtime laws. This not only hurts workers by depriving them of their rights, but also places an unfair burden on law-abiding businesses that sustain higher costs for their workers’ compensation, unemployment and social security benefits.

There is an ongoing debate as to whether these “gig” workers are employees or independent contractors. The companies contend that the workers make their own schedules and provide their own equipment (e.g. cars), thus making them independent contractors. However, companies like Uber or Handy negotiate the workers’ pay rates (e.g. the cost of a ride), take a percentage of these earnings, and solely handle behind-the-scenes business matters like complaints and advertising.

Misclassification is fraud. While the business may contend that a worker is an independent contractor and provide them a 1099 form instead of a W-2 form, this may not be valid under the law. The New York Workers’ Compensation Board may decide that the workers are in fact employees and thus are entitled to benefits.

New York State has developed a task force specifically for tackling this exploitation of workers’ rights. Their task force hotline number is 1-888-469-7365, and they also have a digital reporting form available at https://www.ny.gov/content/report-suspected-workplace-violations

If you have been injured on the job but your employer contends that you are an independent contractor and not entitled to benefits, please call the office of Gilbert, Blaszcyk & Milburn. Our attorneys will help to assess your case and ensure your rights as a worker are upheld.

Melvile

Garden City

Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.